United States v. Dupree

57 F.4th 1269

UNITED STATES of America, Plaintiff-Appellee,

v.Brandon Romel DUPREE, Defendant-Appellant.

No. 19-13776

United States Court of Appeals, Eleventh Circuit.

Filed: January 18, 2023

Peter J. Sholl, Dawn A. Tiffin, U.S. Attorney Service - Middle District of Florida, U.S. Attorney, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.

Conrad Benjamin Kahn, Joshua Roy Lukman, Rosemary Cakmis, Federal Public Defender's Office, Orlando, FL, for Defendant-Appellant.

Caleb Kruckenberg, Pacific Legal Foundation, Arlington, VA, for Amicus Curiae.

Before William Pryor, Chief Judge, Wilson, Jordan, Rosenbaum, Jill Pryor, Newsom, Branch, Grant, Luck, Lagoa, and Brasher, Circuit Judges.

William Pryor, Chief Judge, filed a concurring opinion.

Grant, Circuit Judge, filed an opinion concurring in the judgment.

Luck, Circuit Judge, filed a dissenting opinion, in which Branch, Circuit Judge, joined.

Jill Pryor, Circuit Judge:

This appeal requires us to consider whether an inchoate offense qualifies as a "controlled substance offense" for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent'g Guidelines Manual § 4B1.2(b) (U.S. Sent'g Comm'n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of "controlled substance offense" omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree's sentence, concluding that our decisions in United States v. Weir , 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith , 54 F.3d 690 (11th Cir. 1995), foreclosed his argument. United States v. Dupree , 849 F. App'x 911 (11th Cir. 2021) (unpublished), reh'g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree's petition to rehear the case en banc. After careful consideration, and with the benefit of oral argument, we hold that the definition of "controlled substance offense" in § 4B1.2(b) does not include inchoate offenses. We therefore vacate Dupree's sentence and remand to the district court for resentencing.

I. BACKGROUND

Dupree pled guilty to one count of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) ; one count of conspiracy to possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 846 ; and one count of carrying a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Before his sentencing, a probation officer prepared a Presentence Investigation Report ("PSR"). The PSR reported that Dupree had two previous convictions for controlled substance offenses. The PSR considered Dupree's § 846 conspiracy conviction to be his third controlled substance offense. Together, these three offenses qualified Dupree for the career offender enhancement under § 4B1.1(a) of the Sentencing Guidelines.

Applying the enhancement, the PSR assigned Dupree a total offense level of 29 with a criminal history category of VI, for a range of 151 to 188 months of imprisonment under the Guidelines. In addition, Dupree was required to serve a consecutive 60-month term of imprisonment for the carrying a firearm count. See 18 U.S.C. § 924(c). After adding the mandatory minimum consecutive penalty required by § 924(c), Dupree's guidelines range was 211 to 248 months of imprisonment.

Without the enhancement, Dupree's guidelines range would have been lower. He would have had an offense level of 23 with a criminal history category of V, resulting in a guideline range of 84 to 105 months’ imprisonment. After adding the mandatory minimum penalty required by § 924(c), his guidelines range would have been 144 to 165 months’ imprisonment.

Dupree objected to the enhancement, arguing that inchoate crimes¹ such as his § 846 conspiracy conviction did not qualify as a controlled substance offense.² He argued that without his § 846 conspiracy conviction serving as his third qualifying offense he could not be sentenced as a career offender. The district court overruled Dupree's objection and applied the enhancement. Based on considerations including Dupree's youth and difficult upbringing, as well as his serious medical conditions including paralysis from waist down, the district court varied downward from the guideline range and sentenced Dupree to 106 months’ imprisonment.

On appeal, Dupree renewed his argument that his § 846 conspiracy conviction did not count as a controlled substance offense. He pointed to the plain language of § 4B1.2, which omitted inchoate offenses from the definition of "controlled substance offense." He acknowledged that the commentary to § 4B1.2—specifically Application Note 1—included inchoate crimes in the definition. But he argued that Application Note 1 was unenforceable because it was inconsistent with § 4B1.2's plain text.

The panel rejected Dupree's argument. Dupree , 849 F. App'x at 912. It relied on Weir , in which "we held that conspiracy to possess with intent to distribute marijuana was a controlled substance offense within the meaning of the career offender enhancement." Id. (citing Weir , 51 F.3d at 1031–32 ). The panel further noted that in Smith , decided after Weir , we "held ... that [A]pplication [N]ote 1 to ... § 4B1.2 ‘constitutes a binding interpretation of the term controlled substance offense.’ " Id. (quoting Smith , 54 F.3d at 693 ). This precedent, the panel concluded, bound it to affirm Dupree's sentence. Id.

Dupree petitioned for, and we granted, rehearing en banc to revisit our precedent.

II. STANDARD OF REVIEW

"We review de novo the interpretation and application of the Sentencing Guidelines." United States v. Cingari , 952 F.3d 1301, 1305 (11th Cir. 2020).

III. DISCUSSION

Dupree argues that he was not a career offender under the Guidelines. A defendant is considered a career offender for purposes of sentencing if, among other things, the defendant "has at least two prior felony convictions of either a crime of violence or a controlled substance offense" and his "instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense." U.S. Sent'g Guidelines Manual § 4B1.1(a). Dupree concedes that his prior state drug convictions qualified as controlled substance offenses. But he argues that his § 846 conspiracy conviction does not count as the required third predicate offense because it was not a controlled substance offense. Section 4B1.2 provides:

The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance ... or the possession of a controlled substance ... with intent to manufacture, import, export, distribute, or dispense.

Id. § 4B1.2(b). The commentary in Application Note 1 to § 4B1.2 adds that the term " ‘controlled substance offense’ include[s] the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. § 4B1.2(b) cmt. n.1.

Dupree contends that his § 846 conspiracy conviction is not a controlled substance offense because § 4B1.2(b)’s "controlled substance offense" definition unambiguously excludes inchoate offenses. Because the Guideline is unambiguous, he argues, we must not defer to the commentary's broader definition of controlled substance offense to include inchoate offenses.³ We agree. We begin with the framework the Supreme Court has established for determining how the Guidelines’ commentary impacts the interpretation of the Guidelines. We then use that framework to interpret § 4B1.2(b). We conclude by applying our ruling to Dupree's case.

A. The Commentary Cannot Expand the Interpretation of Unambiguous Sentencing Guidelines.

The Supreme Court examined whether courts are bound by the commentary's interpretation of the Guidelines in Stinson v. United States , 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). The Court began by explaining that "[t]he Sentencing Reform Act of 1984 ... created the Sentencing Commission ... and charged it with the task of establishing sentencing policies and practices for the Federal criminal justice system." Id. at 40–41, 113 S.Ct. 1913 (alterations adopted) (internal quotation marks and citations omitted). "The Sentencing Commission promulgate[d] the [G]uidelines by virtue of an express congressional delegation of authority for rulemaking" just as federal administrative agencies promulgate regulations. Id. at 44, 113 S.Ct. 1913. The Court then analogized the Guidelines’ commentary to "an agency's interpretation of its own legislative rules." Id. at 45, 113 S.Ct. 1913 ("[T]he [G]uidelines are the equivalent of legislative rules adopted by federal agencies. ... [T]his type of commentary is akin to an agency's interpretation of its own legislative rules."). Guided by this analogy, the Court determined that the commentary should receive the same level of deference given to an agency's interpretation of its own rules, deference the Court first described in Bowles v. Seminole Rock & Sand Co . Id.

Seminole Rock instructed that when considering how to treat an issuing agency's interpretation of a regulation, a court initially should consider whether "the meaning of the [regulation] is in doubt." Bowles v. Seminole Rock & Sand Co. , 325 U.S. 410, 414, 65 S.Ct. 1215, 89 L.Ed. 1700 (1945). If the meaning is in doubt—if the regulation is ambiguous—the court can then consider the issuing agency's interpretation of the regulation. Id. At that point, the court should afford the agency's construction of its own regulation "controlling weight" unless...